General terms and conditions of business and delivery (T&Cs)
1. Applicability of the T&Cs
Our deliveries are made exclusively in accordance with these T&Cs. They thus also apply to all future business relationships, even if they are not expressly agreed again.
These T&Cs shall come into effect no later than on receipt of the deliveries. Any counter-confirmations made by the customer that refer to its terms and conditions of business or procurement are hereby expressly rejected. Any derogations from our T&Cs shall only take effect if we confirm them in writing.
2. Offer and conclusion of contract
Our offers are subject to change and are non-binding. Contracts and any changes and addenda thereto must always be in writing. Verbal ancillary agreements or verbal assurances that go beyond the written contract shall not be valid. Any ancillary agreements shall require our written confirmation in all cases.
Pricing is always based on our price lists as amended from time to time, which are net of the applicable statutory VAT. The prices quoted net of the applicable statutory VAT in any written order confirmations shall be material. Our deliveries may be subject to price increases after conclusion of the contract if these are due to unforeseeable changes to price-determining factors arising after conclusion of the contract; the level of any price increases must be justified in line with the change to the price-determining factors and be must notified to the customer within a reasonable period. Orders for which no prices have been expressly agreed shall be charged based on the list price valid on the day of delivery.
Prices shall be deemed to be ex-works unless otherwise agreed. Additional services shall be charged separately. Freight charges shall be based on the applicable tariff in each case.
4. Weight calculation
Weight information on delivery notes and invoices is subject to the usual deviations. The material measurement for invoicing is the weight established on an officially inspected weighing machine by us at our delivery facility. The customer is entitled to verify the weight calculation at any time at its own costs. The weight of the delivery may only be challenged at the place of delivery immediately on receipt prior to unloading.
Unless otherwise agreed, our invoices are payable within ten days of invoicing with no deductions. If the customer fails to comply with the payment terms of ten days, we are entitled to calculate interest at the rate set by commercial banks for overdraft facilities, and no less than the statutory default interest, from the date in question.
We are entitled to set off the customer’s payments pursuant to Section 366 (2) German Civil Code (BGB), any contrary stipulations by the customer notwithstanding. Payment instructions, cheques and bills of exchange will only be accepted if separately agreed and only on account of payment, under computation of all collection and discount charges.
A payment shall only be deemed to have been made once the funds are at our disposal. In the case of cheques and bills of exchange, the payment shall only be deemed to have been made when the cheque or amount of the bill has been credited to us definitively.
If the customer fails to meet its payment obligations – in particular if bills of exchange or cheques are not cleared or if the customer discontinues its payments, or if we become aware of other circumstances that call into question the customer’s creditworthiness – the entire (remaining) debt shall become payable even if we have accepted cheques or bills of exchange.
In this case we are also entitled to withdraw from our delivery obligations or to demand advance payments or the payment of sureties. The customer shall only have a right of set-off, retention or diminution if counterclaims have been legally established or are undisputed, including where claims for defects or counterclaims are being asserted.
6. Delivery time
The dates and periods specified by us are non-binding, unless expressly agreed otherwise in writing.
24 hours after non-compliance with a non-binding delivery date or a non-binding delivery period, the customer may submit a written request that we perform the delivery within a reasonable period. This reminder puts us in a position of default. The customer may only claim damages for default in addition to delivery if we are liable for wilful misconduct or gross negligence; liability shall be limited to foreseeable losses.
In the event of our default, the customer may also set a reasonable grace period in writing, including a statement that it shall reject acceptance of the delivery on expiry of the period. If the grace period expires without delivery of the goods, the customer is entitled to withdraw from the contract via a written declaration and also to demand compensation for non-performance.
The customer shall only be entitled to compensation in the event of wilful misconduct or gross negligence on our part; such liability shall be limited to foreseeable losses. The claim to delivery shall lapse in the foregoing cases.
If chance events render delivery by us considerably more difficult or impossible while we are in default, we shall nevertheless be liable in accordance with the provisions in Paragraphs 2 and 3 unless the losses would also have occurred on timely delivery.
If a binding delivery date or binding delivery period is exceeded, we shall be in default on non-compliance with the delivery date or delivery period. In this case, the customer’s rights shall derive from Paragraph 2, Sentence 3; Paragraph 3 and Paragraph 4 of our T&Cs.
We shall not be liable for any delays to delivery due to force majeure and events that render delivery considerably more difficult or impossible for us – these also include material procurement difficulties that occur retrospectively, interruptions to operations, industrial action, lockouts, staff shortages, lack of means of transportation, official orders, etc., even if they happen to our subcontractors or their subcontractors – including where binding dates and periods have been agreed.
They entitle us to postpone delivery by the duration of the impairment plus a reasonable lead time or to withdraw from the contract in full or in part due to the non-performed part.
If the impairment lasts longer than three working days, the customer shall be entitled to withdraw from the contract in respect of the non-performed part following a reasonable grace period.
We are entitled to make partial deliveries at any time.
7. Transfer of risk
Risk shall pass to the customer as soon as the consignment is handed over to the person performing the transportation or leaves our delivery facility for the purpose of dispatch. If shipment is delayed or becomes impossible through no fault of our own, risk shall pass to the customer with the notification of the readiness for shipment.
The materials to be delivered by us must be of an average type and quality. Certain characteristics of the materials shall only be deemed to be warranted by us if we have expressly confirmed this in writing.
We warrant that the supplied materials are free from defects and possess any warranted characteristics for the duration of the statutory warranty period, albeit for a period of no longer than two years. The warranty period begins on the respective delivery date.
The customer shall inspect the materials immediately on receipt. Any complaints about defects must be made in writing without undue delay and no later than within a limitation period of two weeks of receipt of the materials. In any event, complaints about defects must be made before combining the material with other materials.
If the supplied materials are defective or do not possess warranted characteristics, we shall deliver replacements subject to an exclusion of any other warranty claims. If the customer is not interested in a substitute delivery or if the requisite effort needed to effect the substitute delivery is disproportionate compared to the benefit to the customer, the customer is entitled to demand a reduction in consideration or a revocation of the contract. A revocation of the contract shall not be permitted if the nature of the contractual services precludes restitution.
The foregoing paragraphs contain the full extent of the warranty for the materials supplied by us and exclude other warranty claims of any kind. This does not apply to claims for damages arising from warranties pertaining to characteristics which serve to protect the customer from the risk of specific consequential damage.
We are liable in accordance with the following provisions for any losses – irrespective of the legal grounds – caused by us, our legal representatives and/or vicarious agents due to wilful misconduct or gross negligence.
Liability vis-à-vis our customers is excluded in all other cases.
The level of our liability is limited to the foreseeable loss. Liability for any consequential damage lying outside the warranty pertaining to characteristics is excluded.
Until all claims accruing to us against the customer on any legal grounds now or in the future are satisfied, the following security shall be granted to us. We shall release this at our discretion on request should its value exceed the claims by more than 20% for more than a minor period.
The material supplied by us shall remain our property (reserved goods). The customer is entitled to process and sell the reserved goods in the ordinary course of its business.
Under this stipulation, if a sale of the customer or other dispositions over it or acts for the benefit of third parties exclude the assignability of its claims to third parties, this shall not be regarded as the ordinary course of business. Pledging or assignment by way of security over reserved goods is permissible.
The customer shall not acquire title to the reserved goods if the goods are processed or transformed. Processing and transformation is in all cases performed for us as the manufacturer, albeit without any obligation on our part.
Any claims arising from the further sale or processing or on other legal grounds in respect of the reserved goods are hereby assigned to us by way of security up to the level of the purchase price of the reserved goods. The customer is entitled to collect these claims on our behalf.
The collection authorisation shall lapse if the customer fails to properly satisfy its payment obligations towards us. In this case we are entitled to disclose the assignments to third-party debtors.
The customer is obliged to provide to us without undue delay and at its own expense any information needed for us to assert our claims and other demands and to supply to us any documentary evidence that it may hold in its possession. The obligation applies accordingly in the event of compulsory enforcement regarding property, claims and other proprietary rights of ours; the customer is required to notify us without undue delay of the compulsory enforcement; it shall further notify the pledge creditors of our rights in writing.
11. Other provisions
The place of exclusive jurisdiction for any disputes arising directly or indirectly in connection with this agreement is our registered office to the extent permissible by law. However, we shall also be entitled to institute legal proceedings against the customer at its general place of jurisdiction.
These T&Cs and the entirety of the legal relationship between the customer and us shall be subject to the laws of the Federal Republic of Germany.
Should a provision contained in these T&Cs or a provision within the framework of other agreements be or become invalid, this shall have no bearing on the effectiveness of all other provisions or agreements. The invalid provision of these T&Cs shall be replaced by a valid one that most closely resembles the legal and economic intent of the invalid provision.